concurring in part and dissenting in part:
I agree with that part of the majority decision that modifies defendant’s sentence for criminal trespass to a residence to three years’ imprisonment, although, as I explain below, I disagree with its analysis. I also agree that defendant is entitled to a total of 437 days’ credit for time served. However, I cannot agree with the majority that defendant was ineligible for an extended-term sentence for his conviction of aggravated battery. Therefore, I respectfully dissent from the part of the majority decision that reduces defendant’s sentence for aggravated battery to five years’ imprisonment.
The majority concludes that defendant was ineligible for an extended-term sentence because, in contravention of section 5 — 8— 2(b) of the Code, the record does not reflect that when he entered his plea he had knowledge of the possibility of extended-term sentencing. The majority indicates that it applied Eisenberg, 109 Ill. App. 3d 98, to determine that the trial court did not adequately inform defendant of the possibility of an extended-term sentence. However, Eisenberg supports only the proposition that the record must reflect that prior to his plea the defendant had knowledge of the possibility of an extended-term sentence. Eisenberg, 109 Ill. App. 3d at 100. Eisenberg does not address what statement by a trial court sufficiently informs a defendant of the possibility that he could receive an extended-term sentence. Unlike the case at bar, in Eisenberg there was no indication in the record that the court informed the defendant of the possibility of an extended-term sentence. Eisenberg, 109 Ill. App. 3d at 100. In contrast, in this case, prior to defendant’s plea, the trial court judge advised defendant that if extended-term sentencing applied, his conviction of aggravated battery could result in a sentence of 2 to 10 years’ imprisonment. I find no case that discusses the language a trial court judge must use to properly alert a defendant to the possibility of an extended-term sentence. However, I disagree with the majority’s conclusion that the trial court’s admonishment failed to satisfy section 5 — 8—2(b) of the Code.
Section 5 — 8—2(b) states, in part:
“If the conviction was by plea, it shall appear on the record that the plea was entered with the defendant’s knowledge that a sentence under this [extended-term] [s]ection was a possibility.” (Emphasis added.) 730 ILCS 5/5 — 8—2(b) (West 2004).
The majority concludes that the trial court judge’s statement to defendant that “[i]f extended term applies, it’s 2 to 10 years” was too tentative to demonstrate that defendant had knowledge that an extended-term sentence was a possibility. I disagree. Black’s Law Dictionary defines a “possibility” as, “An event that may or may not happen.” Black’s Law Dictionary 1185 (7th ed. 1999). Accordingly, section 5 — 8—2(b) required only that the record reflect that defendant knew that an extended-term sentence may or may not occur. When the trial court judge informed defendant of the consequences of extended-term sentencing, she alerted defendant to the fact that a sentence of 2 to 10 years’ imprisonment may or may not happen. I do not believe that using the term “if’ before “extended term” negates the defendant’s knowledge of the possibility of extended-term sentencing. In fact, by using the term “if,” the trial court specifically indicated that extended-term sentencing may or may not apply and, thus, suggested that it was a possibility for defendant.
The majority asserts that defendant did not believe extended-term sentencing applied to him. However, this does not obviate the fact that the trial court alerted defendant that extended-term sentencing was a possibility. Simply because defendant did not believe extended-term sentencing applied to him does not mean he did not have knowledge that an extended-term sentence was a possible result of a conviction of aggravated battery. Defendant had knowledge of the possibility, but believed that it would not occur. Thus, because the record shows that defendant had knowledge of the possibility of an extended-term sentence, I believe that the trial court could impose upon defendant an extended-term sentence for aggravated battery. As a result, I oppose the majority’s modification of defendant’s sentence for aggravated battery from 10 years’ imprisonment to 5 years’ imprisonment.
Although the majority utilizes the same analysis to show that defendant was not subject to an extended-term sentence for criminal trespass to a residence, I agree on other grounds. Defendant argues that imposing an extended-term sentence for his conviction of criminal trespass to a residence was erroneous because an extended-term sentence may be imposed only for a defendant’s most serious conviction. The State concedes such an error. Our supreme court has held that the plain language of section 5 — 8—2(a) of the Code (730 ILCS 5/5 — 8—2(a) (West 2004)) requires that when a defendant has been convicted of multiple offenses of differing classes, an extended-term sentence may be imposed only on the conviction within the most serious class. People v. Thompson, 209 Ill. 2d 19, 23 (2004), citing People v. Jordan, 103 Ill. 2d 192 (1984). As the majority points out, defendant pleaded guilty to aggravated battery, a Class 3 felony, and criminal trespass to a residence, a Class 4 felony. Accordingly, because defendant was convicted of two offenses of differing classes, he could be sentenced to an extended-term sentence only for aggravated battery. See Thompson, 209 Ill. 2d at 23. Therefore, I agree with the majority that the trial court erred when it sentenced defendant to an extended term for criminal trespass to a residence, and I support the majority’s modification of defendant’s sentence for that offense to three years’ imprisonment. In addition, because the majority properly reduced defendant’s sentence for criminal trespass to a residence to 3 years’ imprisonment, defendant’s argument that a sentence of 10 years’ imprisonment exceeds the statutory maximum for that offense is now moot.
For the foregoing reasons, I respectfully dissent from the part of the majority’s decision that vacated defendant’s extended-term sentence for aggravated battery and modified defendant’s sentence for aggravated battery from 10 years’ imprisonment to 5 years’ imprisonment. Otherwise, I concur with the majority’s decision to modify defendant’s sentences and affirm the trial court in all other respects.